These terms and conditions ("Terms") constitute a legal agreement between you and Vindaq Ltd a Registered LLC in New Zealand and a head office located in Marlborough New Zealand. ("Vindaq", "we" or "us"). Please read all Terms carefully. If you are unable to comply with these Terms, please do not register, access, install or use the Vindaq Website, Applications or Services (each as defined in the below paragraph).
By registering for, accessing or using our website (www.vindaq.com) and any subdomains of our website ("Website"), or registering, accessing, installing or using any "Vindaq" mobile application ("App"), or using or receiving the Website, App and any services supplied to you by Vindaq (collectively, "Services"), you represent to us that you are legally competent to enter into and agree to these Terms in your registered jurisdiction or any jurisdiction that you use the afore mentioned Website, App and Services.
THE SERVICES ARE INTENDED SOLELY FOR USERS WHO ARE OF LEGAL AGE OR OLDER IN THE JURISDICTION OF REGISTRATION, AND ANY REGISTRATION, USE OR ACCESS TO THE SERVICES BY ANYONE UNDER THE LEGAL AGE TO BUY, SELL, TRADE AND CONSUME LIQUOR IS STRICTLY PROHIBITED AND IN VIOLATION OF THESE TERMS.
BY USING THE WEBSITE, APP OR THE SERVICES, YOU EXPRESSLY REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO BUY, SELL, TRADE AND CONSUME LIQUOR OUTLINED BY THE LAWS GOVERNING BOTH THE ORIGIN AND DESTINATION INVOLVED IN ANY TRANSACTION OF SUCH LIQUOR.
PLEASE NOTE THAT THESE TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES (EXCEPT IN CERTAIN CIRCUMSTANCES), RATHER THAN JURY TRIALS OR CLASS ACTION LAW SUITS.
LIQUOR LAW DISCALIMER
BEFORE USING THE WEBSITE, APP OR THE SERVICES, YOU EXPRESSLY REPRESENT AND WARRANT THAT YOU ARE AWARE OF ALL LEGAL AND TAX OBLIGATIONS INVOLVED WITH BUYING, SELLING, TRADING AND CONSUMING LIQUOR OUTLINED BY THE LAWS GOVERNING BOTH THE ORIGIN AND DESTINATION INVOLVED IN ANY TRANSACTION OF LIQUOR. SELLING LIQUOR WITHOUT A LICENSE IS STRICTLY PROHIBITED UNLESS A LICENSED THIRD PARTY IS THE RECEIVING ENTITY AND THE LICENSED THIRD PARTY IS LEGALLY ABLE TO BUY LIQUOR FROM A PRIVATE OR UNLICENSED ENTITY. VINDAQ RECOMMENDS YOU REVIEW ALL LEGAL AND TAX OBLIGATIONS BEFORE BUYING, SELLING, TRADING OR CONSUMING LIQUOR.
You acknowledge that these Terms are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your use of the Services and receipt or use of data, content, products and/or services through the Services.
1.0 Our Product. Our Free subscription enables Private and Commercial users to manage (Only Wine) collections or portfolios privately and search for, discuss, place and schedule orders through a conver-transact system with Licensed commercial winery, wholesale, retail, hospitality and other licensees with retail or hospitality privileges, ("Licensed Users") for such licensed transactions orders placed through the App or the Website are accepted, reviewed, and ultimately fulfilled by Licensed Users. All sales are solely transacted between you and a Licensed User. Each product listed on Vindaq is not a final offer to purchase such product but an invitation to communicate and or make an offer by placing an order or enquiry. You acknowledge and agree that Vindaq is not licensed to buy, sell or trade wine. In all instances, all sales are advertised, accepted, made and delivered by licensed commercial users who receive all orders and offers and issue a final invoice requesting payment. Private users can share the contents of their cellar via a link however we recommend reviewing all legal and tax obligations before privately soliciting a purchase or sale of private collection wine. Verified subscriptions may enable private users to publicly display wine in their private collection alongside licensed users. If it is the Verified user’s intention to buy, sell or trade wine privately we highly recommend consulting a liquor and tax professional to ensure you comply with all liquor and tax laws in the applicable jurisdictions. Licensed users are required to complete additional fields during the registration process including, business name, business type (Winery, Wholesale, Retail, Hospitality) and enter a valid liquor license number to be displayed. Licensed users are required to comply with the legal obligations of their liquor license at all times.
In all instances, any solicitation, invitation, offer, advertisement or communication is void where prohibited by law. Vindaq does not sell or deliver alcohol beverages and is a management and marketing software tool only. At no such time is the Service intended to facilitate any improper furnishing of inducements by any private collector or licensed supplier of alcoholic beverages or any improper exclusionary practices by any individual or alcohol beverage licensee. We recommend consulting liquor and tax professionals at all times and familiarizing yourself with any applicable legal and tax obligations before commencing to buy, sell or trade alcohol.
2.0 Fees. Vindaq is a Software as a Service “SaaS” offering a free lifetime subscription charging Licensed Users performance based transaction and reward redemption fees relating to their wine listings.
Note: Rewards margins are built into the USD backed points price so the sellers full margin is preserved at the time points are converted to cash +/- any short term currency fluctuations. Currency gains or losses will be minimized by scheduling regular pay outs on any high activity points balance. (V2.0)
The Licensed user fulfilling any order and/or its third-party service provider(s) may charge additional fees in connection with your transaction, including but not limited to shipping or delivery fees, packaging or taxes, all of which will be outlined within conver-transact and on the final invoice presented to the buyer to accept and pay via the stripe connect payment system. In the future, we may, at our sole discretion, begin charging fees for additional Services. We will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services at that time, you will be required to pay all applicable fees for such Services. You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use, capital gains or withholding taxes) imposed by any authority on you by virtue of your transacting or otherwise by using the Services. Licensed users are able to list featured products with a set fixed or featured rewards points offer as an optional extra paid for up front by an increase of the fixed Vindaq referral fee for that particular product offer. Such offerings may include reward points and status points to drive sales and loyalty. All Vindaq points are backed in full by a cash balance held in the Vindaq liability account and are fully transferrable.
All rewards and featured wine offers must comply with all liquor advertising and promotional laws in the said jurisdiction/s with access to the offer.
3.0 Conver-Transact. The Conver-Transact tool is designed to personalize your experience and mitigate risk and inconveniences in the buying, selling and trading process. When you send an order you can initiate chat communication to ensure you get the desired customer service experience. If a Licensed user accepts your order, you will be sent a payment link or invoice with payment terms for the full amount of your purchase plus any additional fees that user may charge. Once the charge is authorized by stripe, the user will package your order for either pick-up, shipment or delivery, as indicated by you in your order request. The individual picking-up the order or accepting the shipment or delivery must provide a valid form of photo identification proving that he or she is of Legal Age and may be required to sign for the order at the time of pick-up, receipt of shipment or delivery. It is solely the responsibility of each user, and its employees and agents, or the shipping or delivery company used by the user and that shipping or delivery company’s employees and agents, to verify such proof of identification. Your order request, pick-up, shipment or delivery may be declined for any reason by the user, or its employee or agent, or the shipping or delivery company used by the user or that shipping or delivery company’s employee or agent. If declined because the requested item(s) or acceptable substitutions are not in stock, the user may offer you a full refund or provide alternative options via conver-transact chat. If your order request, pick-up, shipment or delivery is declined or cannot be completed for any other reason, you may be charged a non-refundable restocking fee of twenty five dollars ($25.00) ("Restocking Fee"). Without limiting the foregoing, THE RESTOCKING FEE MAY BE CHARGED IF THE APPLICABLE ORDER RECIPIENT, FAILS TO PROVIDE ADEQUATE PROOF OF IDENTIFICATION AND AGE, OR IF THE USER, OR ITS EMPLOYEE OR AGENT, OR THE SHIPPING OR DELIVERY COMPANY USED BY THE LICENSED RETAILER OR THAT SHIPPING OR DELIVERY COMPANY’S EMPLOYEE OR AGENT, IN ITS SOLE DISCRETION, DETERMINES THAT THE TRANSFER OF POSSESSION OF THE ITEMS IS OTHERWISE ILLEGAL, UNSAFE OR INAPPROPRIATE.
YOU AGREE THAT YOU MAY NOT PROVIDE VINDAQ OR A PRIVATE OR LICENSED USER ANY INFORMATION OF, OR USE THE SERVICES TO PURCHASE OR PICK-UP FOR OR SEND A DELIVERY OR SHIPMENT TO, ANY INDIVIDUAL UNDER THE LEGAL AGE TO CONSUME ALCOHOL.
3.1 Buyer Protection. Vindaq cannot offer any buyer protection or support any form of resolution in instances where communication has been made outside of the Vindaq conver-transact feed associated with the order or in instances where payment has been made outside of the Vindaq stripe connect payment gateway. At no time should anu Private or Licensed user request or present credit card details beyond the Vindaq stripe connect payment gateway and under no circumstances should a Licensed user request Cash or Direct Debit payments.
4.0 Sales. Any sales by users are completed at their licensed premises or legally applicable location and title to, and ownership of, all ordered items pass from them to you at their licensed premises and you assume all responsibility for the pick-up, shipment or delivery of your order. By arranging for the pick-up or transportation of your order on your behalf, the user is providing a service to you. Pick-up, shipment and delivery services may be subject to additional policies and procedures of the user and their shipping or delivery company. By using or offering pick-up, shipping or delivery services, you represent that you are of legal drinking age and are in full compliance with your local and state laws applicable to the purchase, transportation, receipt and/or reporting of your order. You also represent that you have obtained all required permissions, paid all required fees, are working through properly licensed intermediaries where required, are legally entitled to complete the sale and take possession of the order and are legally entitled to take the quantities ordered. You further represent that you are using the Services for lawful purposes. You acknowledge that certain Services may not be available to you due to local rules and laws applicable to your location or jurisdiction.
5.0 Trades. A trade by two users may include gifting, wine swaps or accepting rewards points as a form of trade for a particular bottle of wine usually held by a Private user. Even in the absence of money as the means to transact, we recommend you comply with all applicable liquor and tax laws in the jurisdiction/s associated with the transaction. By using or offering pick-up, shipping or delivery services, you represent that you are of legal drinking age and are in full compliance with your local and state laws applicable to the trade, transportation, receipt and/or reporting of the trade. You also represent that you have obtained all required permissions, paid all required taxes and fees, are working through properly licensed intermediaries where required, are legally entitled to complete the trade and take possession of the goods and are legally entitled to take the quantities traded. You further represent that you are using the Services for lawful purposes. You acknowledge that certain Services may not be available to you due to local rules and laws applicable to your location or jurisdiction. Trading wine privately may carry additional risks regarding product quality, authenticity and fraudulent and criminal activity. We advise taking extreme care how, where and with who you choose to trade with. Vindaq will not be held deemed responsible for any user’s failure to deliver, accept or fairly compensate another user when delivering or receiving wine in a legal trade and under no circumstances will Vindaq be deemed responsible in any illegal or illicit trade between two users. Ensure at all times that payments and communication are conducted within Vindaq so we can offer assistance to resolve any unjust or unfair practices.
6.0 Pricing & Value. The prices and values published on the Website and App are list prices based on the price or value entered by our users and may not always reflect the most prevalent price or value. All prices and values should include any applicable taxes but this may from time to time need to be adjusted prior to accepting an order and issuing a final invoice due to cross-jurisdictional requirements or changes in applicable tax rates. Licensed commercial users reserve the right to determine final prices or values of any product and communicate this within the conver-transact tool prior to accepting an order and issuing a final invoice for payment. The absence of a price does not mean that the user may not accommodate an offer through a conver-transact enquiry requesting the Licensed user to list a price to allow the wine to be added to an order. A Private user may not be able to legally complete a sale in a particular jurisdiction and therefore is deemed to have a tradeable value associated with a public listing for their reference only.
7.0 Featured Cellar; Status Points (V2.0). Vindaq, in its sole discretion, may offer certain promotions and status points associated with our Licensed users promoting their cellar or featuring a specific wine to the extent permissible under applicable laws. Depending on your jurisdiction, you may or may not be eligible to participate in such featured offers in either giving and or receiving reward or status points. Featured wine listings offer the chance to collect additional reward points. Points will be issued by Vindaq and bonus according to the % set by the Licensed user fulfilling the order, unless otherwise specifically stated in the terms and conditions of such promotion or status credit. Vindaq at its sole discretion may also issue bonus points to users outside of the featured cellar offerings to reward loyalty. Points may be gifted or traded between users and can only be redeemed for a wine at the given points value + shipping if applicable. Vindaq will also offer cash redemptions less the 15% fee (Built into the points price) for Licensed users that have accumulated a large volume of points. The recipient of and points or cash associated with points must be of legal drinking age and will be required to provide proof of identification and age when signing for the wine reward.
8.0 Software License. Vindaq hereby grants to you, subject to these Terms, a personal, non-exclusive, non-transferable, limited license (without the right to sublicense) to access and use the Services (including updates and upgrades that replace or supplement it in any respect and which are not distributed with a separate license, and any documentation) solely for your Free, Private or Licensed commercial use on a Mobile, Tablet, Laptop or Desktop device that you own or control. These Terms do not permit you to login or use the App on a Mobile, Tablet, Laptop or Desktop device that you do not own or control and you may not distribute or make all or any portion of the Services available over a network where it could be used by multiple devices at the same time without prior authorization by Vindaq. All rights not expressly granted herein are reserved by Vindaq.
9.0 Hardware Devices. You are responsible for providing the hardware device, wireless service plan, software, Internet connections and/or other equipment or services that you need to login and use the App, Website or Services. WE DO NOT GUARANTEE THAT THE APP, WEBSITE OR SERVICES CAN BE ACCESSED AND USED ON ANY PARTICULAR DEVICE OR WITH ANY PARTICULAR SERVICE PLAN. WE DO NOT GUARANTEE THAT THE APP, WEBSITE OR SERVICES WILL BE AVAILABLE IN, OR THAT YOU CAN BUY, SELL OR TRADE WINE IN OR BETWEEN, ANY PARTICULAR GEOGRAPHIC LOCATIONS. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications on your mobile device ("Push Messages"), as well as via email or other types of messages. You acknowledge that, when you use the App, Website or the Services, your wireless service provider may charge you fees for data, text messaging and/or other wireless or Internet access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Some data charges may apply when uploading profile or cover images or when uploading wine images to reference and display wines held in your cellar.
10.0 Acceptable Use and Restrictions. You agree to only upload wine or wine related product and information to your cellar and to without exception protect the Services, and their proprietary content, information and other materials, from any unauthorized access or use, and you agree that you will not use the Services or such proprietary content, information or other materials except as expressly permitted herein or expressly authorized in writing by Vindaq. You agree that: (10.1) you will not use the Services if you are not fully able and legally competent to agree to these Terms; (10.2) you will only use the Services for lawful purposes and you will not use the Services for sending or storing any unlawful material or for fraudulent purposes or to engage in any illegal, offensive, indecent or objectionable conduct or to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party; (10.3) you will not use the Services to advertise, solicit or transmit commercial advertisements, including "spam"; (10.4) you will not use the Services to cause nuisance, annoyance or inconvenience; (10.5) you will not impair the proper operation of the Services’ network; (10.6) you will not try to harm the Services in any way whatsoever; (10.7) you will not copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Services, any updates, or any part of the Services or content therein without written permission from Vindaq; (10.8) you will only use the Services for your own private or commercial use within the law as a Private user and within the boundaries of your liquor license as a Licensed commercial user, and will not distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Services in any unauthorized manner, including but not limited to by trespass or burdening network capacity, or use the Services in any service bureau arrangement; (10.9) you will not attempt to obtain any information or content from the Services using any robot, spider, scraper or other automated means for any purpose; (10.10) you will keep secure and confidential your account password or any identification we provide you which allows access to the Services; (10.11) you will only use an access point or data account which you are authorized to use; (10.12) you and any recipient of your alcohol will provide whatever proof of identity and age reasonably requested by the user, its employee or agent, or the shipping or delivery company used by the user or that shipping or delivery company’s employee or agent; and (10.13) you will not permit any third party to engage in any of the acts described in clauses (10.1) through (10.13). You understand and agree that you are not permitted to: (a) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Services; (b) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the App, Website, any updates to or portion of the App or Website (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the App or Website); (c) use any means to discover the source code of the App or Website or to discover the trade secrets in the Services; or (d) otherwise circumvent any functionality that controls access to or otherwise protects the Services. Any attempt to do any of the foregoing is a violation of the rights of Vindaq and its licensed users. If you breach these restrictions, you may be subject to prosecution and damages.
11.0 Objectionable Material. You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. If you object to any part of the Services, you should cease using the Services immediately. Vindaq reserves the right to immediately and without notice deactivate any account displaying objectionable content or content not associated with wine.
12.0 Applicable Laws. The laws of New Zealand, excluding its conflicts of law rules, govern these Terms. Your use of the Services is also subject to local, state, national, or international laws. Vindaq makes no representation as to any laws, rules or regulations of any jurisdiction regarding buying, selling, trading, importing, shipping or delivery of alcoholic beverages. Vindaq shall not be liable for any loss or damage arising from your failure to comply with these Terms or to comply with applicable laws. You agree to comply at your sole expense with all applicable laws and regulations in the jurisdiction/s of any communication or transaction involving alcohol. Vindaq explicitly reserves the right to refuse access to any portion of the Services at any time without notice for your failure to abide by the aforementioned Terms or your failure to comply with any applicable laws.
13.0 Apple App Store. This clause 13.0 applies to you only if you are using an App from the Apple App Store and is not relevant to the v1.0 web based application and website. Vindaq and you, the end-user of the Services, acknowledge that these Terms are entered into by and between Vindaq and you and not with Apple, Inc. ("Apple"). Notwithstanding the foregoing, you acknowledge that Apple and its subsidiaries are third-party beneficiaries of these Terms and that Apple has the right (and is deemed to have accepted the right) to enforce these Terms. Vindaq is solely responsible for the App and any content contained therein. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. You and we acknowledge that in the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and will have no responsibility for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty. You and we acknowledge that Apple is not responsible for addressing any claims made by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation. You and we acknowledge that in the event of any third party claim that the App, or your possession or use of the App, infringes such third party’s intellectual property rights, Apple will not be responsible for the investigation, defence, settlement and discharge of any such claim. You acknowledge that you have reviewed the App Store Terms and Conditions. Capitalized terms not defined in this clause 13.0 shall have the meanings set forth in the App Store Terms and Conditions. Your use of the App must comply with the App Store Terms and Conditions.
14.0 Google Play Store. This clause 14.0 applies to you only if you are using the App from Google, Inc. or one of its affiliates or successors ("Google") via Google Play and is not relevant to the v1.0 web based application and website. To the extent of any conflict between the Google Terms of Service, the Google Play Business and Program Policies and such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the "Google Play Terms") on the one hand and these Terms, the Google Play Terms shall apply with respect to your use of the App. The Google Play Terms can be accessed here: Google Play Terms. Vindaq and you hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by Vindaq or you (or any other user) under these Terms or the Google Play Terms.
15.0 Indemnification. By entering into these Terms and using any portion of the Services, you agree that you shall defend, indemnify and hold Vindaq, its Free, Private and Licensed users and their respective parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any of these Terms or any applicable law or regulation, (b) your violation of any rights of any third party, (c) your use or misuse of the Services, or (d) your negligence or wilful misconduct.
17.0 Third Party Services and Materials. Certain Services may display, include or make available content, data, information, applications, services or materials from third parties ("Third Party Services and Materials") or provide links to certain third-party web sites and apps. By using the Services, you acknowledge and agree that Vindaq is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, availability, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Services and Materials, websites or apps. Vindaq does not warrant or endorse and will not have any liability or responsibility to you or any other person for any Third-Party Services and Materials. Third Party Services and Materials and links to other websites are provided solely as a convenience to you.
18.0 Disclaimer of Warranties. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY CONTENT, INFORMATION, SERVICES, AND PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SERVICES AND MATERIALS) ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY VINDAQ OR ITS AUTHORIZED AGENT OR REPRESENTATIVE WILL BE DEEMED TO CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. VINDAQ MAKES NO REPRESENTATION OR WARRANTY AS TO YOUR LEGAL RIGHT TO PICK-UP OR HAVE ALCOHOLIC BEVERAGES TRANSPORTED TO YOU OR YOUR INTENDED RECIPIENT.
19.0 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VINDAQ BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF USE, DATA OR PROFITS OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, OR FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES, OR THE PROCESSING, PURCHASE, SALE, TRANSPORTATION, SHIPMENT, DELIVERY OR CONSUMPTION OF ALCOHOLIC BEVERAGES, INCLUDING ANY CLAIM, DEMAND OR DAMAGES ARISING FROM ANY TRANSACTION THROUGH THE SERVICES INITIATED OR COMPLETED BETWEEN YOU AND ANY FREE, PRO OR LICENSED USER HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF VINDAQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, DEMAND OR DAMAGE. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. (19.1) If, for any reason, a court or arbitral body finds Vindaq liable for damages notwithstanding the foregoing, in no event shall Vindaq’s total liability for all damages exceed the amount paid by you to Vindaq for your use or receipt of the Services. The foregoing limitations will apply even if the above-stated remedy fails of its essential purpose. Any and all claims made against Vindaq will be in accordance with New Zealand Law and shall be defended in New Zealand.
NEITHER VINDAQ NOR THE FULFILLING FREE, PRIVATE OR LICENSED USER NOR THE SHIPPING OR DELIVERY COMPANY USED BY ANY SUCH USER SHALL BE LIABLE FOR ANY DAMAGES TO GOODS CAUSED BY WEATHER CONDITIONS AND OTHER "ACTS OF GOD" DURING TRANSPORTATION. WEATHER CONDITIONS MAY CHANGE AT ANY TIME, SO VINDAQ, THE FULFILLING FREE, PRO OR LICENSED USER OR THE SHIPPING OR DELIVERY COMPANY USED BY ANY SUCH USER CANNOT ASSUME LIABILITY FOR DAMAGE CAUSED BY CHANGES IN WEATHER DURING TRANSPORTATION. "ACTS OF GOD" INCLUDE UNFORESEEABLE DELAYS OR ACCIDENTS, PUBLIC UNREST, CONFISCATION AND NATURAL DISASTERS.
You agree that the above limitations of liability together with the other provisions in these Terms that limit liability are essential to these Terms and that Vindaq would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability; you are agreeing to these limitations of liability to induce Vindaq to grant you the rights set forth in these Terms.
20.0 Ownership. (20.1) The Services and their content, including "look and feel" (e.g., text, graphics, images and logos), proprietary content, information and other materials, are protected under intellectual property, copyright, trademark and other laws. You acknowledge and agree that Vindaq and/or its users own all right, title and interest in and to the Services and their content (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. Except for the limited license to the Services granted to you in clause 8.0 above, you do not acquire any rights or licenses under any of Vindaq’s (or its users’) patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of these Terms. (20.2) Any and all (a) suggestions for correction, change and modification to the Services and other feedback, information and reports provided to Vindaq by you (collectively "Feedback"), and all (b) improvements, updates, modifications or enhancements thereto, whether made, created or developed by Vindaq or otherwise relating to the Services (collectively, "Revisions"), are and will remain the property of Vindaq. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Services or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of Vindaq and Vindaq may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Vindaq any and all right, title and interest that you may have in and to any and all Feedback and Revisions. At Vindaq’s request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
21.0 Copyright Dispute Policy. Vindaq has adopted and implemented a policy that provides for the termination in appropriate circumstances of users of the Website and App who are found repeatedly to provide or post protected third-party content without necessary rights and permissions, including content on our social media properties. This may include but is not limited to listing wine that you do not have or have never had in your possession using third party content to represent such wine. Please review our complete Copyright Dispute Policy and learn how to report potentially infringing content.
22.0 Modifications. We may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the Services after the "Last Revised" date at the end of these Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms. If you do not agree with the modifications, then please terminate your account and or uninstall the App and do not access or continue to use the Services until such time as you can comply with such modifications.
23.0 Termination. These Terms are effective until you or Vindaq terminates these Terms. Vindaq may suspend or terminate your account(s) or cease providing you with all or any portion of the Services at any time for any reason, with or without notice to you. Upon termination, you will cease all use of the Services (full or partial) of the Website and or App in your possession or control. Termination will not limit any of Vindaq's other rights or remedies at law or in equity. clauses 8, 10, and 12-28 shall survive termination or expiration of these Terms for any reason, provided however, that the license granted in clause 8 shall cease immediately upon termination or expiration.
24.0 Export Laws. You agree that you will not export or re-export, directly or indirectly the Website or App, or any portion of the Services and/or other information or materials provided by Vindaq hereunder, to any country for which New Zealand or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any NZ embargoed countries or any country that has been designated by the NZ Government as a "terrorist supporting" country, or (b) to anyone listed on any NZ Government list of prohibited or restricted parties, including the Reserve Bank of New Zealand’s list of Specially Designated Nationals or the NZ Commerce Commissions Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list.
25.0 Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to Vindaq for which monetary damages would not be an adequate remedy and Vindaq shall be entitled to seek equitable relief, in addition to any remedies it may have hereunder or at law, without having to post a bond or other security or prove damages.
26.0 Dispute Resolution and Arbitration, No Class Actions. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THESE TERMS OR THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The NZ Arbitration Act 1996 ("NZAA96") and New Zealand arbitration law apply to these Terms. If you do not want to arbitrate disputes with Vindaq and you are an individual, you may opt out of this arbitration agreement by sending an email to email@example.com within 30 days of the day you first access or use the Services.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS AS A COURT WOULD.
If you intend to seek arbitration you must first send written notice to Vindaq’s Head Office of your intent to arbitrate ("Notice"). The Notice to Vindaq should be sent by any of the following means: (a) electronic mail to firstname.lastname@example.org or (b) NZ Post certified mail to Vindaq Ltd., Attn: VINDAQ HQ 179 Brookby Road RD2 Blenheim, Marlborough New Zealand 7272. The Notice must: (c) describe the nature and basis of the claim or dispute; (d) set forth the specific relief sought; and (e) set forth your name, address and contact information. If we intend to seek arbitration against you, we will send any notice of dispute to you at the contact information we have for you. If we do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Vindaq may commence an arbitration proceeding.
WE EACH AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. In the event of a dispute arising between the parties in respect of any right or obligation under this agreement, each party will act in good faith to take all reasonable steps necessary to attempt to resolve the dispute themselves, then the parties shall enter into arbitration process under the NZAA96 to be held in Marlborough, New Zealand. The arbitrator’s decision will be final and binding. Further, you agree that the arbitrator may not consolidate proceedings or more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding, and that if this specific provision is found to be unenforceable, then the entirety of this arbitration clause shall be null and void. If for any reason a claim proceeds in court rather than in arbitration, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and we each agree to the exclusive jurisdiction and the exercise of personal jurisdiction of Marlborough New Zealand for the purpose of litigating all claims or disputes, and waives any objection as to inconvenient forum. We also both agree that Vindaq may bring suit in court for injunctive relief to enjoin infringement or other misuse of intellectual property rights.
27.0 Miscellaneous. These Terms may not be modified by you except by a writing executed by the duly-authorized representatives of Vindaq. These Terms will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms and the rights granted under these Terms may be assigned by Vindaq but may not be assigned by you without the prior express written consent of Vindaq. If any provision of these Terms is or becomes, at any time or for any reason, unenforceable or invalid, If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties. It is expressly understood that in the event either party fails to perform any these Terms and the other party does not enforce that term, the failure to enforce does not constitute a waiver of any term. Nothing contained in these Terms will be deemed to constitute either party as the agent or representative of the other party or both parties as joint ventures or partnerships for any purpose. No joint venture, partnership, employment, or agency relationship exists between Vindaq and you or any third party as a result of these Terms or your use of the Services. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms due to any cause beyond the reasonable control of the party invoking this provision, the affected party's performance will be extended for the period of delay or inability to perform due to such occurrence. You and Vindaq agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms. The headings and captions contained in these Terms will not be considered to be part of these Terms but are for convenience only.
You may contact us regarding the Services or these Terms at: Vindaq Ltd 179 Brookby Road RD@ Blenheim Marlborough New Zealand 7272 or by email to: email@example.com
Last Revised: December 07, 2017